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             Pain as the Primary Impairment-Moving     from the Subjective to the Objective                     Section BB


             Pain as the Primary Impairment
             Moving from the Subjective to the Objective


             Thelma Cohen, Esq.
             Lawrence Miller, MD


                  Pain: /I a state of physical or mental lack of well-being or physical or mental uneasi-
                  ness that ranges from mild discomfort or dull distress to acute often unbearable
                  agony, may be generalized or localized, and is the consequence of being injured or
                  hurt physically or mentally or of some derangement of or lack of equilibrium in the
                  physical or mental functions (as through disease), and that usually produces a reac-
                  tion of wanting to avoid, escape, or destroy the causative factor and its effects ... "

                                                      -Webster's Third New International Dictionary, unabridged, 2002



                   I/Pain is whatever the experiencing person says it iS existing whenever he says it does"
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                                             -Margo    McCaffery, nurse and pioneer in the field of pain medicine, 1968


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                 Pain plays a significant role in the practice of Social Security Disability law. Most people
             claiming disability are impacted to one degree or another by pain. It is our job as attorneys and
             representatives to take the subjective experience and prove its reality. Properly established,
             pain in and of itself may justify a grant of disability under the Social Security Act A large body
\            of law, regulatory and case, provides guidance on the type. and quantum of proof necessary to
I            convince the Social Security Administration that your client's pain is real and disabling.


    II           Generally, the claimant must first establish the existence of a medically determinable impair-
             ment In other words, the pain has to be associated with, or attached tO,an objective condi-
             tion. Once that is done, pain can be described through testimony, with a description of its
             impact on functional activity. Testimony about pain can (and should) be bolstered with descrip-
             tions of the pain in medical chart notes, in the Third Party Questionnaire, and in testimony of
             other witnesses. Pain can reduce a claimant's function in both exertional and non-exertional
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l            ways. It can cause fatigue, reduced concentration and irritability, along with reduction in abili-
             ty to sit, stand, walk, lift, etc, due to avoidance of activities which trigger pain. There are also
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     I        issues connected with use of pain medications, such as drowsiness or stomach upset.
                 Familiarity with the specific pain regulations is critical when preparing your case, as the
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              presentation of evidence should be tailored to the Social Security Administration's method of
     i        evaluation. Following are the central regulatory provisions concerning pain.
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The Social Security Act discusses pain in its definition    of disability     at 42    use 423:
     "An individual shall not be considered to be under a disability unless he furnishes
     such medical and other evidence of the existence thereof as .the Commissioner of
     Social Security may require. An individual's statement as to pain or other symptoms
    .shall not alone be conclusive evidence of disability as defined in this section; there
     must be medical signs and findings, established by medically acceptable clinical or
     laboratory diagnostic techniques, which show the existence of a medical impair-
     ment that results from anatomical, physiological, or psychological abnormalities
     which could reasonably be expected to produce the pain or other symptoms alleged
     and which, when considered with all evidence required to be furnished under this
     paragraph (including statements of the individual or his physician as to the intensity
     and persistence of such pain or other symptoms which may reasonably be accepted
     as consistent with the medical signs and findings), would lead to a conclusion that
     the individual is under a disability. Objective medical evidence of pain or other
     symptoms established by medically acceptable clinical or laboratory techniques (for
     example, deteriorating nerve or muscle tissue) must be considered in reaching a con-
     clusion as to whether the individual is under a disability." 42 USC 423(d)(5)(A)
      (emphasis added)

Regulation 20 CFR 404.1529 details how pain is to be evaluated:

     "(a) General. In determining whether you are disabled, we consider all your symptoms,
          including pain, and the extent to which your symptoms can reasonably be accept-
          ed as consistent with the objective medical evidence and other evidence .... These
          include statements or reports from you, your treating or nontreating source, and oth-
          ers about your medical history, diagnosis, prescribed treatment, daily activities,
          efforts to work, and any other evidence showing how your impairment(s) and any
          related symptoms affect your ability to work. We will consider all of your statements
          about your symptoms, such as pain, and any description you, your treating source or
          nontreating source, or other persons may provide about how the symptoms affect
          your activities of daily living and your ability to work. However, statements about
          your pain or other symptoms will not alone establish that you are disabled; there
          must be medical signs and laboratory findings which show that you have a medical
          impairment(s) which could reasonably be expected to produce the pain or other
          symptoms alleged and which, when considered with all of the other evidence
          (including statements about the intensity and persistence of your pain or other symp-
          toms which may reasonably be accepted as consistent with the medical signs and
           laboratory findings), would lead to a conclusion that you are disabled. In evaluating
          the intensity and persistence of your symptoms, including pain, we will consider all
          of the available evidence, including your medical history, the medical signs and lab-
          oratory findings and statements about how your symptoms affect you ....         We will
          then determine the extent to which your alleged functional            limitations and



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                             Pain as the Primary Impairment-Moving   from the Subjective to the Objective                                      Section BB

                                     restrictions due to pain or other symptoms can reasonably be accepted as consis-
                                     tent with the medical signs and laboratory findings and other evidence to decide
                                     how your symptoms affect your ability to work.
                                 (b) Need for medically determinable impairment that could reasonably be expected
                                     to produce your symptoms, such as pain. Your symptoms, such as pain, fatigue,
                                     shortness of breath, weakness, or nervousness, will not be found to affect your
                                     ability to do basic work activities unless medical signs or laboratory findings
        ::,' I ,"                     show that a medically determinable impairment(s) is present. ... At the adminis-
                                     trative law judge hearing or Appeals Council level of the administrative review
                                      process, ... the adjudicator(s) may ask for and consider the opinion of a medical
            .'.      "
                                      or psychological expert concerning whether your impairment(s) could reasonably
                                      be expected to produce your alleged symptoms. The finding that your impair-
                                      ment(s) could reasonably be expected to produce your pain or other symptoms
                                      does not involve a determination as to the intensity, persistence, or functionally
                                      limiting effects of your symptoms. . . .                  ,
                                 (c) Evaluating the intensity and persistence of your symptoms, such as pain, and
                                      determining the extent to which your symptoms limit your capacity for work-

                                       (1) General. When the medical signs or laboratory findings show that you have a
                                            medically determinable impairment(s) that could reasonably be expected to
                                            produce your symptoms, such as pain, we must then eva:luate the intensity
                                            and persistence of your symptoms so that we can determine how your symp-
                                            toms limit your capacity for work. In evaluating the intensity and persistence
I                                           of your symptoms, we consider all of the available evidence, including your
                                            history, the signs and laboratory findings, and statements from you, your
I                                           treating or nontreating source, or other persons 'about how your symptoms
                                            affect you. We also consider the medical opinions of your treating source and
                                            other medical opinions as explained in § 404.1527 ....
                                       (2) Consideration of objective medical evidence. Objective medical evidence is
                                            evidence obtained from the application of medically acceptable clinical and
                                             laboratory diagnostic techniques, such as evidence of reduced joint motion,
                                             muscle spasm, sensory deficit or motor disruption. Objective medical evi-
                                             dence of this type is a useful indicator to assist us in making reasonable con-
                                             clusions about the intensity and persistence of your symptoms and the effect
                                            those symptoms, such as pain, may have on your ability to work. We must
                                             always attempt to obtain objective        medical evidence and, when it is
                                             obtained, we will consider it in reaching a conclusion as to whether you are
                                             disabled, However, we will not reject your statements about the intensity
                ,j                           and persistence of your pain or other symptoms or about the effect your
                  I                          symptoms have on your ability to work solely because the available objec-
                  ::\    '                   tive medical evidence does not substantiate your statements.
                                        (3) Consideration of other evidence. Since symptoms sometimes suggest a greater
                'j                           severity of impairment than can be shown by objective medical evidence
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             alone, we will carefully consider any other information you may submit about
             your symptoms. The information that you, your treating or nontreating source,
             or other persons provide about your pain or other symptoms (e.g., what may
             precipitate or aggravate your symptoms, what medications, treatments or other
             methods you use to alleviate them, and how the symptoms may affect your
             pattern of daily living) is also an important indicator of the intensity and per-
             sistence of your symptoms. Because symptoms, such as pain, are subjective
             and difficult to quantify, any symptom-related       functional  limitations and
             restrictions which you, your treating or nontreating source, or other persons
             report, which can reasonably be accepted as consistent with the objective
             medical evidence and other evidence, will be taken into account as
             explained in paragraph (c)(4) of this section in reaching a conclusion as to
             whether you are disabled. We wi II consider all of the evidence presented,
             including information about your prior work record, your statements about"
             your symptoms, evidence submitted by your treating or nontreating source,
             and observations by our employees and other persons. Section 404.1527
             explains in detail how we consider and weigh treating source and other med-
             ical opinions about the nature and severity of your impairment(s) and any
             related symptoms, such as pain. Factors relevant to your symptoms, such as
             pain, which we will consider include:

             (i) Your daily activities;
             (i i) The location, duration, frequency, and intensity of your pain or other symptoms;
             (iii) Precipitating and aggravating factors;
             (iv) The type, dosage, effectiveness, and side effects of any medication you
                   take or have taken to alleviate your pain or other symptoms;
             (v) Treatment, other than medication, you receive or have received for relief
                   of your pain or other symptoms;
             (vi) Any measures you use or have used to relieve your pain or other symp-
                   toms (e.g., lying flat on your back, standing for 15 to 20 minutes every
                   hour, sleeping on a board, etc.): and
             (vii) Other factors concerning your functional limitations and restrictions due
                   to pain or other symptoms.

         (4) How we determine the extent to which symptoms, such as pain, affect your
             capacity to perform basic work activities. In determining the extent to which
             your symptoms, such as pain, affect your capacity to perform basic work activ-
             ities, we consider all of the available evidence described in paragraphs (c)(l)
             through (c)(3) of this section. We will consider your statements about the
             intensity, persistence, and limitingeffects of your symptoms, .and we will eval-
             uate your statements in relation to the objective medical evidence and other
             evidence, in reaching a conclusion as to whether you are disabl~d: We will
             consider whether there are any inconsistencies in the evidence and the extent



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          Pain as the Primary Impairment-Moving   from the Subjective to the Objective                                              Section BB

                       to which there are any conflicts between your statements and the rest of the
                       evidence, including your history, the signs and laboratory findings, and state-
                       ments by your treating or nontreating source or other persons about how your
                       symptoms affect you. Your symptoms, including pain, will be determined to
                       diminish your capacity for basic work activities to the extent that your alleged
                       functional limitations and restrictions due to symptoms, such as pain, can rea-
                       sonably be accepted as consistent with the objective medical evidence and
                       other evidence."

            Ruling 95-5p is especially helpful:
               "Symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness, are the
            individual's own description of the effects of a physical or mental impairment(s) ....
                Because symptoms sometimes suggest a greater severity of impairment than can be shown
            by objective medical evidence alone, careful consideration must be given to any available
            information about symptoms.
               The RFC assessment or, in the case of an individual under age 18 claiming benefits based on
            disability under title XVI, the IFA, must describe the relationship between the medically deter-
            minable impairment(s) and the conclusions regarding functioning which have been derived
            from the evidence, and must include a discussion of why reported daily activity limitations or
          . restrictions are or are not reasonably consistent with the medical and other evidence.
                In instances in which the adjudicator has observed the individual, the adjudicator is not
            free to acceptor reject that individual's complaints solely on the basis of such personal obser-
            vations. Rather, in all cases in which pain or other symptoms are alleged, the determination
             or decision rationale must contain a thorough discussion and analysis of the objective med-
             ical and the other evidence, including the individual's complaints of pain or other symptoms
             and the adjudicator's personal observations. The rationale must include a resolution of any
             inconsistencies in the evidence as a whole and set forth a logical explanation of the individ- .
             ual's ability to work or, in the case of an individual under age 18 claiming benefits based on
             disability under title XVI, the individual's ability to function independently, appropriately, and
             effectively in an age-appropriate manner. "

           CASE LAW-Tidbits
              The circuits vary in their standards of how pain is to be evaluated. An excellent discussion
           of the law, circuit by circuit is contained in Bohr's Social Security Issues Annotated, by Sarah
           H. Bohr and Chantal J. Harrington (lames Publishing, c. 1998 with periodic updates). Some
           sections are attached to this article, and reprinted with express permission of the James
           Publishing House, www.jamespublishing.com.         1-800-440-4780.
              Avery v. Secretary of Health & Human Services 797 F.2d 19 (151 Cir. 1986) continues to be
           applied in the First Circuit, and its rationale is instructive for cases beyond its Circuit. It sets
           out when pain can constitute an additional limitation to reduce residual functional capacity.
           The Court in Avery required that the ALJ consider six factors to determine if the alleged pain
           adds an additional limitation. These factors are also contained in SSR 96-7p, and include fre-
           quency, duration and intensity of symptoms, effect of pain meditations, trIggering factors, etc.
           See Kratman v. Barnhart 436 F. Supp. 2d 300 (D.Mass. 2006):


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   "When assessing the credibility of a claimant's asserted subjective symptoms, the ALJ must
consider a series of factors. Avery v. Secretary of Health and Human Services, 797 F.2d 19, 23
(1" Cir.1986). These factors are commonly referred to as the "Avery factors" and are outlined
in Social Security Ruling 96-7p ("SSR 96-7p") as follows:

   1.  The individual's daily activities;
   2.  The location, duration, frequency, and intensity of the individual's pain or other symptoms;
   3.  Factors that precipitate and aggravate the symptoms;
   4.  The type, dosage, effectiveness, and side effects of any medication the individual takes
       or has taken to alleviate pain or other symptoms;
    5. Treatment, other than medication, the individual receives or has received for relief of
       pai n or other symptoms;
    6. Any measures other than treatment the individual uses or has used to relieve pain or
       other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every
       hour, or sleeping on a board); and
    7. Any other factors concerning the individual's functional limitations and restrictions due
       to pain or other symptoms.

Kratman supra at page 308.
   The First Circuit confirms that pain constitutes a non-exertional impairment requiring that
the sequential analysis of the case cannot stop with the grids. See also Perminter v. Bowen
765 F.2d 870, 872 (9th Circuit 1985.)
    In the Ninth Circuit, once a claimant produces medical evidence of an underlying impair-
ment which could produce pain (although it need not be at the level testified to), the testimo-
ny can be rejected only by showing specific, clear and convincing reasons. Smolen v. Chater
80 F.3d 1273, 1281 (9th Cir, 1996) Many cases win or fall with discussion of how ALJ can
 meet this burden. See, for example, Moisa v. Barnhart 367 F.3 882, (9th Cir (Cal.) 2004):
    "Here, Moisa offered evidence demonstrating-and        the ALJ found-that     Moisa suffered
from a series of severe impairments, capable of causing pain. See Smolen v. Chater, 80 F.3d
 1273, 1281 (9th Cir.1996). Nevertheless, the ALJ rejected Moisa's pain testimony solely for
 lack of objective medical evidence corroborating it. He cited no evidence of malingering and
made no findings that would allow us to conclude that he rejected the testimony on permis-
sible grounds, such as a reputation for dishonesty, conflicts between the claimant's testimo-
ny and his conduct, or internal contradictions in the testimony. See 20 eF.R. § 404.1529(c);
Smolen, 80 F.3d at 1281; Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir.1991) (en bane). His
rejection of Moisa's pain testimony was therefore clear error. See Light v. SSA, 119 F.3d 789,
792 (9th Cir.1997)." (emphasis added)
   Courts can determine that even though the ALJ erred in rejecting pain testimony, the denial
of benefits will stand if the error was harmless. See Carmickle v. Commissioner (9th Cir, No.
05-36128, filed July 24,2008). In this case, Carmickle alleged disability based on back pain
and mental impairments. Carmickle testified to constant pain with resulting limitations, and
the ALJ rejected the testimony based on four factors: that the testimony was inconsistent with
other activities including full time college attendance, claimant's receipt of unemployment



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      Pain as the Primary Impairment-Moving   from the Subjective to the Objective                 Section BB

      benefits, his minimal treatment, and a doctor's contrary opinion. The Justices found that
      Carmickle had produced evidence of a medically established impairment, and thus the ALJ
      was bound by the"clear and convincing" standard in reviewing the pain testimony. The Court
      found that the ALJimproperly      relied on receipt of unemployment benefits as a reason to dis-
      pute the pain, and further, that the conservative treatment received was not inconsistent with
      the pain and thus, also, not a "clear and convincing" reason to reject the testimony. However,
      the Court stated, "Because we conclude that two of the ALJ's reasons supporting his adverse
      credibility finding are invalid, we must determine whether the ALJ's reliance on such reasons
      was harmless error [citom.]"     id. at page 9153 ... "The relevant inquiry in this context is not
      whether the ALJ would have made a different decision absent any error ., . it is whether the
      ALJ's decision remains legally valid, despite such error" id. This case was distinguished from
      others whether the ALJ gave no reasons for rejecting pain testimony.
         There is some solace in Carmickle's dissent, which contains an extensive discussion of the
      standards to be applied to determine when error is "harmless." and its rationale can be
       argued in other contexts. •

      Practice Tips

                 Plan the pain testimony in advance. Prepare your client to describe his pain using the
                 criteria set out in the regulations above: part of body, description of pain, intensity, fre-
                 quency, triggering factors. Testimony has more impact if it can be connected to specific
                 activities, so that the description of pain is not in a vacuum.
                 Look at the adverse evidence and consider what an ALJ might rely on to discount pain
                 testimony, and have your client explain the unfavorable evidence. For example, have
                 him explain any treatment gaps, and whether they are connected to lack of funds.
                 Explain any failure to follow prescribed care, such as unpleasant side effects or lack of
                 transportation. Look at the Daily Activities Report and have your client explain any
                 answers that could be construed as inconsistent with pain, such as regular shopping
                 trips or socializing.
                  Use lay witnesses. The spouse, neighbor or friend is an excellent source to describe
                 pain behaviors and limitations. Make sure to lay a proper foundation, asking the wit-
                  ness for his specific observations. These can include direct complaints, difficulty with
                  activities, grimaces or other facial expressions, rubbing body parts, fatigue. This not
                  only bolsters the claimant's testimony, it adds another layer on the ALJ's obligation if he
                  chooses to discredit the testimony.
             •    If the medical records do not describe pain, request a report or form from the treating
                  physician which asks for the "objective" foundation for the pain, and addresses if the

         .   .    pain is consistent with the condition.
                  Use sequelae of pain in forming hypothetical questions to the VE.



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